Oses v. Com. of Mass.
| Decision Date | 04 March 1992 |
| Docket Number | No. 91-2193,91-2193 |
| Citation | 961 F.2d 985 |
| Parties | Thomas OSES, Petitioner, Appellee, v. COMMONWEALTH of MASSACHUSETTS, Respondent, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
LaDonna J. Hatton, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, Mass., was on brief, for appellant.
Anthony Mirenda with whom David R. Geiger and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.
This is an appeal from the grant of writ of habeas corpus by the district court finding that petitioner's 1977 convictions for armed assault and kidnapping in the Superior Court of Massachusetts were unconstitutional. Petitioner Thomas Oses claimed in his petition that his Sixth Amendment right of self-representation had been constitutionally impaired through various errors during his trial in the Massachusetts Superior Court. Oses further claimed that his Fifth Amendment due process rights were violated when the trial court judge improperly suggested that he would testify when he had no intention to do so. Finally Oses argued that the trial judge improperly instructed the jury on reasonable doubt thereby lessening the government's burden and violating his due process rights to a fair trial.
The district court, in a comprehensive opinion, held that petitioner's Sixth Amendment right of pro se representation had been impaired and granted him a conditional writ of habeas corpus: "Accordingly, the writ of habeas corpus shall issue unless, within 90 days from the date of this order, the respondent has reinstituted proceedings to retry the petitioner." Oses v. Commonwealth of Massachusetts, 775 F.Supp. 443, 467 (D.Mass.1991). We affirm substantially for the reasons set out on the district court's thorough opinion, subject to our reservation in note 1, infra. There is no need to repeat the court's analysis here, which we basically adopt.
The court found that three sets of errors in combination led to a violation of petitioner's Sixth Amendment constitutional right to represent himself. At the beginning of the trial, petitioner moved to be admitted to any bench or lobby conferences held during the trial. The trial court stated that it did not intend to have any bench or lobby conferences. The trial court nevertheless held numerous such conferences. By our own count over seventy bench or lobby conferences were held during the course of the twenty-three day trial. The petitioner was excluded from all of them although stand-by counsel was present. These conferences covered such important issues as the number of witnesses that the defendant intended to call, a motion for mistrial following a prosecutor's improper comment, and the admission of evidence. Id. at 458. No reason was ever given for excluding petitioner.
The district court also found that the security methods utilized during the course of trial were a factor in depriving the petitioner of his right to represent himself. At the beginning of the trial, the trial court judge abdicated his responsibility for exercising any oversight whatever over the security methods used by the sheriffs during the course of trial. In at least one day of the trial, the petitioner was forced to conduct his defense while in leg irons and manacles. At another time he was gagged in front of the jury. The trial court judge had promised petitioner a cautionary instruction to the jury regarding the manacles; none was given. Id. at 459-60. While the district court correctly recognized that, in very extreme circumstances, such restraints might be proper, it noted that the trial judge made no inquiry into the possible use of less restrictive measures. The court pointed out that contrary to the teaching of Commonwealth v. Brown, 364 Mass. 471, 478, 305 N.E.2d 830 (1973), the trial judge did not hold a...
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